Everyone had a great time on Wednesday when Senator Aqua Buddha (R-Better Light Bulbs For a Better America) took to the floor of the Senate to talk about drone killings in one of those old-fashioned filibusters that, were they still standard, would probably ensure more bills got voted on simply because most senators are such lazy and unprincipled hacks that they would never actually stand in the well of the World’s Greatest Deliberative Body and talk for thirteen hours straight to prevent the confirmation of El Jefe Obama’s non-controversial nominee to be the Assistant to the Assistant Secretary of Emptying Porta-Potties in National Parks out of spite, but would just file a piece of paper proclaiming their intention to filibuster the way Harry Reid has enabled them to continue to do. It was all lots of fun for political nerds and pundits who have been sounding the alarm about civil liberties for years. Glenn Greenwald was later found naked in front of his TV surrounded by dozens of empty bottles of Jurgens and hundreds of wadded-up Kleenexes, both wrists sprained so badly he may never write anything ever again. So, bonus!
The ever-expanding power of the unitary executive is an important issue and one that has long been a concern, and we are glad that some member of our esteemed national legislature is forcing it out into the public sphere. Hell, Obama being Obama, he is probably glad the legislative branch of our government is doing its job and trying to rein him in, or at least be more in the loop about whatever powers the DOJ is claiming for him.
Still, it is important to note the legal arguments that led Senator Board-Certified to film his first commercial for the 2016 presidential campaign take a principled stand for freedom and liberty. Luckily ThinkProgress is here to examine the scholarly thoughts in what passes for Paul’s mind for us to consider before we start building his monument on the Mall:
You get to the Lochner case. The Lochner case is in 1905. The majority rules 5-4 that the right to make a contract is part of your due process. Someone cannot deprive you of determining how long your working hours are without due process. So President Obama’s a big opponent to this, but I would ask him — among the other things I’m asking him today — to rethink the Lochner case. . . . I think it’s a wonderful decision.
As the right-wing fascists at ThinkProgress point out, Lochner v. New York “is widely viewed as one of the worst Supreme Court decisions in American history,” and is routinely taught in law schools alongside Plessy v. Ferguson as an example of ways in which judges should not interpret the Constitution. In Lochner, a bakery owner sued New York State over a law regulating working conditions in bakeries. The Supreme Court found in the owner’s favor, ruling that something called “liberty of contract” was implicit in the due process clause of the Fourteenth Amendment, which made the New York law a labor law that interfered with the right of the bakery owner to dictate terms of employment, in this case the right to force his employees to work more than ten hours a day and sixty hours a week. No less a legal authority than Robert Bork called Lochner an “abomination” because it was not “based on a reasonable interpretation” of our revered founding document and actually “invented a right to make contracts, a right found nowhere in the Constitution.”
Lochner was overturned in the 1930s, and one would think that a strict constructionist like Senator Low Flow might appreciate the Court striking down an earlier decision by activist judges fabricating a right out of whole cloth. But then one remembers that there is nothing Rand Paul hates more than gub’mint telling hard-working small business owners what they can and cannot do. Also too, we would argue that a rational interpretation of the Constitution suggests there is an enormous difference between applying due process to the adoption of business regulations and applying it to criminal or potential criminal acts that would be used to justify drone-murdering an American citizen. But this is what happens when you ask feeble-minded ophthalmologists to make complicated legal arguments.
And just for kicks, if you feel like watching the entire three minutes of rambling Tea Party id at the top of this post, you will get Senator Liberty’s take on Buchanan v. Warley, a 1917 case that overturned a Louisville city ordinance prohibiting white home owners from selling to blacks, wherein he tries to make the case that Buchanan is based on Lochner (not even close), throws in some dog whistles to remind his Tea Party brethren that Dem-rats are the real racists, and calls for a reassessment of Lochner, which, again, is one of the most reviled SCOTUS decisions in all of American history and is generally consigned everywhere outside Federalist Society dinners to the same dustbin that holds Plessy v. Ferguson and Korematsu v. United States.
And this is just three minutes out of thirteen hours! Imagine what we might have found if we bothered to watch the whole damn thing.
People who normally disagree with Rand Paul’s politics keep saying that even a stopped clock is right twice a day. Okay fine, but the rest of the time that clock is still Rand Paul.